“Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
How later courts described this case
- “Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JOHN DAGOSTINO,
Plaintiff,
v. Case No: 2:22-cv-447-JES-KCD
FEDERAL EXPRESS CORPORATION,
AND ANNE MARIE CAVISTON,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendants’
Daubert Motion To Exclude or Limit Dr. Gregor L. Smith’s Testimony
(Doc. #41) filed on August 25, 2023. Plaintiff did not file a
response. This is a negligence action arising from an accident
between a motor vehicle and a motorcycle. For the reasons set forth
below, the motion is denied.
I.
A motion in limine is a "motion, whether made before or during
trial, to exclude anticipated prejudicial evidence before the
evidence is actually offered." Luce v. United States, 469 U.S. 38,
40 n.2, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984). These motions
"are generally disfavored." Acevedo v. NCL (Bah.) Ltd., 317 F.
Supp. 3d 1188, 1192 (S.D. Fla. 2017). "Evidence is excluded upon
a motion in limine only if the evidence is clearly inadmissible
for any purpose." Id. "A motion in limine is not the proper vehicle
to resolve substantive issues, to test issues of law, or to address
or narrow the issues to be tried." McHale v. Crown Equip. Corp.,
No. 8:19-cv-707-VMC-SPF, 2021 U.S. Dist. LEXIS 194217, 2021 WL
4527509, at *1, *3 (M.D. Fla. Oct. 1, 2021) (citing LSQ Funding
Grp. v. EDS Field Servs., 879 F. Supp. 2d 1320, 1337 (M.D. Fla.
2012)). "Nor may a party use a motion in limine to sterilize the
other party's presentation of the case." Harris v. Wingo, No. 2:18-
CV-17-FTM-29MRM, 2021 U.S. Dist. LEXIS 209165, 2021 WL 5028201, at
*1 (M.D. Fla. Oct. 29, 2021) (cleaned up). Additionally, as the
Supreme Court has cautioned:
The ruling is subject to change when the case unfolds,
particularly if the actual testimony differs from what
was contained in the defendant's proffer. Indeed even if
nothing unexpected happens at trial, the district judge
is free, in the exercise of sound judicial discretion,
to alter a previous in limine ruling.
Luce, 469 U.S. at 41-42.
"A denial of a motion in limine is not a ruling which
affirmatively admits any particular evidence," Harris, 2021 U.S.
Dist. LEXIS 209165, 2021 WL 5028201, at *1, and does not preserve
an issue for appellate review. United States v. Gari, 572 F.3d
1352, 1356 n.2 (11th Cir. 2009). “The movant bears the burden of
demonstrating that the evidence is inadmissible on any relevant
ground.” United States v. Gonzalez, 718 F. Supp. 2d 1341, 1345
(S.D. Fla. 2010). "Unless evidence meets this high standard,
evidentiary rulings should be deferred until trial so that
questions of foundation, relevancy, and potential prejudice may be
resolved in proper context." In re Seroquel Prods. Liab. Litig.,
Nos. 6:06-md-1769-Orl-22DAB, 6:07-cv-15733-Orl-22DAB, 2009 U.S.
Dist. LEXIS 134900, 2009 WL 260989, at *1 (M.D. Fla. Feb. 4, 2009).
II.
Defendants Federal Express Corporation and Anne Marie
Caviston (collectively Defendants) seek to preclude testimony
offered by Dr. Gregory L. Smith (Dr. Smith) about plaintiff John
Dagostino’s (Dagostino) future care. (Doc. #41.) Defendants argue
that under the Daubert standards, Dagostino cannot meet his burden
of establishing that Dr. Smith used reliable methodology in
determining Dagostino’s future care because none of Dagostino’s
treating physicians opined that he would need future care. (Id.,
pp. 8-9.) Thus, Defendants conclude that Dr. Smith’s opinions are
not supported by sufficient facts and data. (Id., p. 9.)
In it’s previous Opinion and Order (Doc. #42), the Court
addressed this very same argument proffered by the Defendants and
concluded that under Daubert v. Merrell Dow Pharm., Inc., 509 U.S.
579, 596, 113 S. Ct. 2786, 2798 (1993), Dr. Smith’s testimony about
Dagostino’s future care was admissible. (Id., p. 4.) In doing so,
the Court explained
Here, the record shows that Dr. Smith is board-certified
in occupational medicine, with over 30 years of clinical
experience in treating injuries and has written hundreds
of life care plans and medical cost analysis. (Doc.
#38-1, p. 7.) The record further reflects that Dr. Smith
relied upon diagnoses from several of Dagostino’s
treating physicians when establishing Dagostino’s life
care plan. (Id., pp. 7-11.) Any failure by Dr. Smith to
offer an opinion outside of his knowledge or not based
on “facts in evidence” in making his assessments is
something that should be addressed by Defendants on
cross-examination and evaluated by the jury since it
goes to the weight to be given to Dr. Smith’s testimony
and not towards its admissibility. See Daubert, 509 U.S.
at 596 (“Vigorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden
of proof are the traditional and appropriate means of
attacking shaky but admissible evidence.”). Defendants’
motion in limine to exclude Dr. Smith’s testimony is
therefore denied. See Incardone v. Royal Carribean
Cruises, Ltd., No. 16-20924-CIV-MARTINEZ/GOODMAN, 2018
WL 6520934, 2018 U.S. Dist. LEXIS 209109, at *41 (S.D.
Fla. Dec. 11, 2018) (denying defendant’s motion in limine
to exclude testimony of a life care planner because it
was not based on sufficient facts or evidence; rather,
defendant’s argument goes to the weight to be accorded
to the testimony).
(Id., pp. 5-6.) For similar reasons, the Court finds that
Defendants’ motion should be denied.
Accordingly, it is now
ORDERED:
Defendants’ Daubert Motion To Exclude or Limit Dr. Gregor L.
Smith’s Testimony (Doc. #41) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 12th day of
September 2023.
|
py OM Zé AKL
JGHN E. STEELE
Sq IOR UNITED STATES DISTRICT JUDGE
Copies: Counsel of record